Top Court Sends Robbery Case Back To County

April 02, 1986|by PEG RHODIN, The Morning Call

The state Supreme Court has reversed the robbery conviction of a Phillipsburg man and sent the case back to Northampton County for a new trial.

The court in an opinion signed by Justice Stephen A. Zappala ruled that the victim's in-court identification of James McGaghey as the man who took his wallet should not have been used as evidence at McGaghey's trial.

The victim, Thomas Talbot of Lopatcong Township, testified that he had never seen his assailant before the May 21, 1981, robbery in the parking lot of Victaulic Corp., WestEaston. Talbot said he glimpsed the man for "about two seconds," and while he said that the robber's features were "burned into his memory," his description to police was vague and failed to mention his beard and mustache, Zappala said.

The justice pointed out that Talbot had been drinking before the incident and "in addition, he was very upset."

McGaghey, after his arrest, "was never identified by Talbot either in a lineup or photographic array," Zappala said. "Talbot actually saw (McGaghey) for the first time at the preliminary hearing which was held one and one half months after the incident."

Talbot was in the magistrate's office when McGaghey, wearing handcuffs, was brought in and seated at the defense counsel's table, the opinion said. He was the only black man in the room. During the hearing, the justice wrote, Talbot identified him as the robber.

McGaghey claimed before the trial that all identification testimony should be suppressed as "unduly suggestive." The court turned down his request and he was found guilty at a three-day jury trial in November 1981. Judge Robert Freedberg sentenced him to one to three years in prison.

The county court and the state Superior Court both refused to grant McGaghey a new trial and the matter went on to the Supreme Court.

"Suggestiveness alone will not forbid the use of an identification, if the reliability of a subsequent identification can be sustained," Zappala said. "To do so, the Commonwealth must establish that the in-court identification resulted from the criminal act and not the suggestive encounter."

However, the justice said, the prosecution failed to show this, and the county court "erred in concluding that the in-court identification was the result not of the incident, but of the confrontation at the preliminary hearing."

Justice Nicholas P. Papadakos disagreed. Papadakos said Talbot was able to point out two co-defendants to police after seeing them on the street, and while he saw McGaghey for only a few seconds at the time of the crime, McGaghey was only a few feet away and Talbot "looked directly" into his face.

"Talbot's attentiveness during the crime was very good and he indicated that he burned (McGaghey's) face into his memory," Papadakos said.